Dyer v. Blair
In Dyer v. Blair, a 3-judge federal panel upheld the right of states to establish their own supermajority requirements for ratification of amendments to the United States Constitution. This was in the 1970s concerning the Equal Rights Amendment, as written by future Justice John Paul Stevens (especially the end as bolded below):
| “ | The vote of the Kansas Legislature, which under the holding in Coleman v. Miller, 307 U.S. 433, 59 S. Ct. 972, 83 L. Ed. 1385, constituted an effective ratification, was 21 to 20. We may take it as decided, therefore, that an extraordinary majority is not required by federal law. 35 There is, moreover, some evidence that when article V was drafted the framers assumed that state legislatures would act by majority vote. 36 That evidence, like the text of article V itself, is equally consistent with the view that a majority of a quorum would be sufficient, or with a view that a majority of the elected legislators would be required. And, of course, it is also consistent with the view that the framers did not intend to impose either of those alternatives upon the state legislators, but, instead, intended to leave that choice to the ratifying assemblies.
This last view seems most plausible to us. If the framers had intended to require the state legislatures to act by simple majority, we think they would have said so explicitly. When the Constitution requires action to be taken by an extraordinary majority, that requirement is plainly stated. 37 While the omission of a comparable requirement in connection with ratification makes it quite clear that a bare majority is permissible, it does not necessarily indicate that either a simple majority or a constitutional majority must be accepted as necessary. We think the omission more reasonably indicates that the framers intended to treat the determination of the vote required to pass a ratifying resolution as an aspect of the process that each state legislature, or state convention, may specify for itself. This conclusion is consistent with -- though by no means compelled by -- the underlying philosophy of the framers with regard to the respective roles of the central government and the several state governments. Madison expressed the thought in urging ratification of the Constitution in The Federalist No. 45:
The Federalist No. 45, at 303 (Modern Library ed.) (Madison). The ratifying power did not, of course, "remain in the State governments" because it was created by article V of the new Constitution. But the failure to prescribe any particular ratification procedure, or required vote to effectuate a ratification, is certainly consistent with the basic understanding that state legislatures should have the power and the discretion to determine for themselves how they should discharge the responsibilities committed to them by the federal government. 38 In addition, were we to conclude that article V does mandate a particular majority vote in each state legislature, we would then have to choose among the myriad of possibilities set forth above. The fact that the several states have actually adopted a wide variety of ratification requirements (see n. 34, supra) demonstrates that no one voting percentage or procedure is manifestly preferable to all others. Moreover, this history manifests a common understanding that there is no federal objection to the state legislatures' independent determination of their own voting requirements. The absence of criticism of this independent action throughout our history strongly suggests that the common understanding existed when the original Constitution was ratified and that the framers did not intend to prescribe any one of the various alternatives as mandatory. Plaintiffs in the cases before us have argued that ratification under article V requires the use of a simple majority, or, at most, a majority of those entitled to vote, a constitutional majority. We find no principled reason for holding that either of those procedures, rather than any of the supermajority hybrids that have emerged since article V was adopted, is the one mandated by the Constitution. 39 Article V identifies the body -- either a legislature or a convention -- which must ratify a proposed amendment. The act of ratification is an expression of consent to the amendment by that body. By what means that body shall decide to consent or not to consent is a matter for that body to determine for itself. This conclusion is not inconsistent with the premise that the definition of the term "ratified" is a matter of federal law. The term merely requires that the decision to consent or not to consent to a proposed amendment be made by each legislature, or by each convention, in accordance with procedures which each such body shall prescribe. 40 |
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Dyer v. Blair, 390 F. Supp. 1291, 1305-07 (N.D. Ill. 1975) (emphasis added).
